Opinion
No. 37336
Decided April 18, 1962.
Court of Appeals — Dismissal — Failure to file briefs within rule — Rule VII B, Courts of Appeals — Discretionary with court — Not reviewable in absence of abuse thereof.
APPEAL from the Court of Appeals for Madison County.
This action in mandamus was instituted in the Court of Appeals to compel the respondent, judge of the Court of Common Pleas, "to approve, settle, allow and sign or to correct and sign" a narrative bill of exceptions. Respondent filed an answer to relator's petition, setting forth five defenses. Relator filed a demurrer to the second, third, fourth, and fifth defenses for the reason that the allegations contained therein do not constitute a defense.
Respondent filed (1) a motion to strike from the files the demurrer filed by relator to the second, third, fourth, and fifth defenses of the answer for the reason that the demurrer was filed beyond rule day without leave upon good cause shown, contrary to the rules of the Court of Appeals, (2) a motion to dismiss the cause for failure of relator to file his trial brief within the time required by the rules of that court, and (3) a motion for judgment on the pleadings based on the defense contained in the first and third defenses, particularly and separately set out in the answer, that the document which relator seeks to have allowed is not a true bill of exceptions, which is not denied by any reply, none being filed. Relator moved the court for permission to refile the demurrer theretofore filed.
The court sustained the motion to strike and overruled the motion to dismiss and the motion for judgment. Relator's motion for permission to refile his demurrer was also overruled.
Thereafter, respondent again filed a motion to dismiss the cause for failure of relator to file his trial brief within the time required by the rules of the Court of Appeals. This motion the court sustained, there having been no trial brief filed or other action taken by relator since the court's ruling on the prior motion to dismiss.
An appeal from the order of the court sustaining the motion and dismissing the action brings the cause to this court for review.
Mr. J. Harvey Crow, in propria persona. Mr. James B. Patterson, Jr., prosecuting attorney, for appellee.
The relator not having complied with the requirement of Rule VII B of the Courts of Appeals, relative to the time within which to file briefs, the action of the court in passing on the motion to dismiss rested solely within its sound discretion and is not reviewable except on the question of an abuse of discretion.
An examination of the record fails to disclose any unreasonable, arbitrary or unconscionable attitude on the part of the court in sustaining the motion.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, DOYLE and O'NEILL, JJ., concur.
BELL, J., not participating.
DOYLE, J., of the Ninth Appellate District, sitting by designation in the place and stead of HERBERT, J.